Slow and Steady: David Souter's Life in the Law

From the day he was nominated to the Supreme Court to the day he stepped down, Justice David H. Souter was described as “stealthy.” First, he was the “stealth candidate,” bringing to the Senate Judiciary Committee a sparse record on national legal issues. Then he stepped down from the Court as the “stealth Justice,” whose appointment conservatives deemed a mistake that must never be repeated.

However, any depiction of Justice Souter as secretive, unpredictable, or agenda-driven is an unfortunate mischaracterization, and Justice Souter’s life in the law has been misunderstood as a result. Throughout his public career, Justice Souter has openly articulated a jurisprudence based on a slow, measured evolution of legal doctrine. He modeled himself after Justice John Marshall Harlan II, a traditional judicial conservative whom he openly admired. Like Harlan, Souter is, and always was, a scholarly jurist, learned in legal history, steeped in the common law tradition, modest in wielding judicial power, and respectful of decisions reached by judges before him.

On the bench and off, Souter was never coy about his philosophy of judging. Indeed, the case most often identified with Souter’s tenure on the Court, Planned Parenthood of Southeastern Pennsylvania v. Casey, exemplifies his approach. While we may never know Souter’s thoughts on the merits of Roe v. Wade, by the time he was on the bench deciding Casey, Roe was a settled and workable precedent to be applied faithfully. That was the Souter way, an open and unwavering commitment to unhurried judicial modesty.

The remaining Parts of this Essay will illustrate the Souter way by comparing two “bookend” statements of his Supreme Court tenure: on one end, his testimony at his Senate confirmation hearings, and on the other, a little-noticed dissent filed eleven days before his retirement. The congruence of his statements is striking and is a forceful rebuttal to the common depiction of Souter as a “stealth Justice.”

In Osborne, the Court decided that the Due Process Clause does not give convicted criminals a right to have their DNA tested, even when such tests could exonerate them. Souter’s dissenting opinion on substantive liberty is uncharacteristically lyrical and not always germane to the case itself—making it even clearer that the Justice was taking a final opportunity to speak to the Court, as well as to those pushing for judicial recognition of individual liberties. Sounding notes of Harlan, his message both recognizes the legitimacy of nontraditional rights to personal liberty and cautions against crusading for them prematurely.

The Souter way is in full view in his Osborne dissent and neatly coincides with the jurisprudential vision he presented in his confirmation hearings. Souter’s opinion rebuts the conservatives on the Court in asserting that conceptions of liberty necessarily evolve. But it also instructs advocates that nations—and courts—need time to absorb new thinking about liberty. Defending the notion of evolving liberty while urging patience in pushing that evolution, the Justice echoed Harlan’s jurisprudence as clearly as when he testified in front of the Judiciary Committee as a nominee nineteen years before. A stealth jurist he was not.

Conclusion

Critics of the confirmation process forget the success of Souter’s confirmation hearings. He may not have entered the Hart Senate Office Building with wide-ranging written views of the Constitution and judging, but Souter laid out a full vision of how his jurisprudence would emerge for those with their ears open. With the partisan stakes of confirmation appearing to escalate with each nomination, we may have seen the last of nominees like David Souter. Whereas Souter was unknown at nomination and open at confirmation, current and future nominees will strive to be exactly the opposite: sufficiently ideologically committed to be noticed and selected, but utterly evasive and impenetrable during confirmation.

The myth of Souter as a “surprise” or “stealth” Justice is ill-fitting but lamentably persistent. We should instead reflect on David Souter as a consistent champion for evolving legal rights and deliberate judicial modesty throughout his life in the law.

Adam Chandler is a member of the Yale Law School Class of 2011. The author thanks Erwin Chemerinsky, Tom Goldstein, Linda Greenhouse, Gabrielle Holburt, and TheYale Law Journal Online editors.